What's New Peruvian Law on Secured Transactions

SUMMARY:

1. Introduction .- 2. The new legislation, study, dissemination and application .- 3. Successful policy measures .- 4. Sources of Inspiration .- 5. Sources of law .- 6. Positivism .- 7. Area of ​​knowledge .- 8. Background doctrine .- 9. Legislative history .- 10. Other background .- 11. Roman Law .- 12. Classes of records .- 13. Assets that can be given as security .- 14. Registrable acts .- 15. The default notation remedied .- 16. New law .- 17. Deleted records .- 18. Purposes of the Act .- 19. Market growth .- 20. Defects of the law .- 21. Competent Registrar .- 22. Signed contracts for goods .- 23. Other guarantees .- 24. Judicial intervention .- 25. Institution regulation .- 26. International law .- 27. Conclusions .- 28. Suggestions .- 29. Legislative proposals

1. INTRODUCTION

It is complex to make a brief introduction to the subject, since it is a very interesting (it is a topic that covers much of the law and it is difficult for a lawyer does not lie within this area of ​​law that we hope will be introduced in the chairs of law, pre-and post-graduate degree and the specialization courses) and within it will only make reference to new legislation in order to have a broader view of the subject studied, ie omit to develop the issues that are not new legislation, however, we attest that it is necessary to understand the previous review of my book Fair (this book can be located in the Peruvian National Library, the library of the University of Lima, library of the Pontifical Catholic University of Peru , library of the Lima Bar Association, Bar Library of Arequipa, a library of Santa Maria Catholic University of Arequipa, among others) and my legal article entitled Contractual Guarantees published in the Journal of Legal Rules in August 2003. Which constitute a very useful tool to understand the guarantees in the Peruvian and foreign law. That is, in this background the main guarantees are grouped existing before the entry into force of the law of analysis, such as agricultural garment, garment industry, garment fishing, mining garment, the registration tax installment sales , global and floating pledge, surety bond, pledge, antichresis, mortgage, lien, among others.

Jobs in which appears the delimitation of the subject, topic importance, economic importance, guarantees efficiency, economic function, definition, obligations guaranteed warranties, guarantees a general law reduces transaction costs, attendance guarantees, classification guarantees, bank guarantees, privileges, among others.

As the first part of this paper will make some comments to introduce readers to the subject matter of this analysis, which is not only necessary to consider the right but also the economy.

It is desirable that all research be introduced, which allows an initial idea on the subject matter of study in which it is necessary to consider not only legal but also economic, since the law in question is intended to revive the Peruvian economy, and is not a novelty in comparative law, but draws on the CIDIP VI of the OAS, and also be taken into account in the CIDIP VII of the same.

In this research will develop the new law on security interests in that sense we can say that these comments may have a preliminary idea of ​​law in question, in order to better understand it and to facilitate their dissemination and implementation, thus which allow growth of the Peruvian market, where supply meets the demand both in Peru.

However, in some cases only the supply is Peruvian and other opportunities only demand is Peruvian, since it is also necessary to consider foreign trade and customs law are studied both, among other topics by international trade law. For example, if Japanese auto exports to Peru, or Peru exports asparagus to the United States can validly constitute a guarantee or various international security interests.

The new legislation are very important in legal systems that have positive law or legislation, noting that a law can set aside entire libraries, for example, the doctrine that the pledge was said agricultural, industrial clothing and sales tax registration in installments, was set aside with the approval of the law in question.

Security interests is a matter of vital importance in the economy, which has been taken into account in a CIDIP, which is the number VI and to be taken into account also in the CIDIP VII, both of the OAS in this regard it is a hot topic not only in the Peruvian law but also in some foreign law, such as Mexico.

Few states have advanced legislation in this area, in this sense we can say that the law in question puts the Peruvian State to the forefront of new legislation which provides for the OAS.

It will study the law in question taking into account the doctrine, which, like the law is a source of law.

The law of secured transactions is new legislation, which corresponds in the present study and study it.

The new legislation makes the right often improve as the economy and social reality, however, the limit is the legal certainty which the law should not be very changeable, as in this case would create legal uncertainty.

In other words, you can not adopt rules as if the design process for standards or legislative process was a game in which the experiments were allowed but a very delicate process, which must be consulted with lawyers and not just specialists, because the former are advised by the latter.

It is in this vein that the specialists are usually authors of bad laws. Must therefore be authors of the laws the lawyers advised by specialists.

The regulation of security interests and intangible assets in the Peruvian law regulation was disjointed and did not allow economic agents to unfold easily in the market, in this sense we can say that not only took into account the right but also to the economy, so the only or purely legal studies can not take a comprehensive understanding of the subject but only partial or limited knowledge.

I have to state that when developing this article I was fascinated by the benefits of the law of analysis, which will help the market grow through the creation of security interests and guarantees and intangible assets such as copyrights, trademarks or patents, among others.

The guarantees and within the incorporeal movable and not only ensure compliance with the loan agreement, but other obligations and acquired by the buyer in the purchase or hire purchase credit. However, we delve into this issue and we have developed the same in a previous job.

It is difficult for an entrepreneur to sell only for cash because the market is reduced, in this vein we can say that entrepreneurs are geared to grow its market, noting that selling the same broad terms.

In all economies are vital security interests, but are more important in the economy of United States, because in this country one hundred years ago the wealth is concentrated in real estate.

As men of law must congratulate this initiative much needed legislation to the Peruvian market and certainly not only himself but also to other markets.

However, we must record that the mortgage was long considered the queen of the guarantees (in the previous century occupied much of the mortgage market as it was very attractive because it could not hide and was mortgaged several times the same property, then it was largely displaced by the trust under warranty, however, we record, we have nothing against the mortgage, but it is clear that gradually emerge as the new leasing contracts, sale of companies, trusts, etc., and also new guarantees, which exceed the scope of the Civil Code and civil law in this regard are the criteria that all guarantees and regulated by the same should be regulated by other rules to decode Code in question and also regulates all other warranties, among which are the title insurance and insurance for much needed credit to the Peruvian economy, because it is very expensive credit, in this sense many people and autonomous entities to refrain from buying credit and mutual contracts, because it is very disadvantageous in this regard we consider that one of the objectives of the Act is to lower interest rates, which will ensure not only the same insurance but also indicated, for which must approve the rule in the Peruvian law and the law of other states, since it serves the economy, so hopefully that will soon be approved in the Peruvian law rules respectively, all in order to allow lower interest rates and the market to grow not only in the Peruvian law but also in other states), which gradually ceases to be used to make way for other securities as the Trust warranty, guarantee contracts on personal property, among other guarantees.

The registration deadlines sales tax was rather used as court established a procedure that was very effective, which have been replaced by the security by the law of security interest will have a great range of application.

Guarantees and among them also the incorporeal movable and are also used in foreign trade and customs law, because in international trade law are also required them, in this regard we consider it appropriate to make clear that the guarantees exceed the state boundaries, making it convenient to take it into consideration at this branch of law also. For example if you export until they pay the price can be validly warranty, and in this case apparently will not have much scope but other mortgage guarantees.

That is, the study of law should not only branches but also by institutions, which is a better way to study because it takes into account the practical or applied the law. In this regard we hope that this paper provides a fairly broad notion of the subject securities is located not only in civil law but also in other branches of law, to which we refer to when studying the area of ​​knowledge. The record that this latter issue is important to study all legal matters in order to have an overview of the subject studied. Which is necessary if we want to be lawyers, not just specialists, since the latter do great harm to Peruvian and foreign law. That fail to pass laws without regard to all branches of law and the same applies to legal production.

2. New legislation, STUDY, DISSEMINATION AND IMPLEMENTATION

The new legislation approved by lawmakers, who are among other members of Congress or Parliament, however, to state that we are not the only lawmakers.

Every so often appear new legislation, which corresponds to study, disseminate and apply.

To which should be the realization of academic events for these objectives.

In this sense we expect the realization of several academic events in which the law is disseminated concerning analysis.

3. SUCCESSFUL POLICY MEASURES

Policy measures are measures taking into account the thinking of legislators or legislature or President of the Republic, which should improve market precautionary so that will increase jobs in the Peruvian state.

They sound credit policy measures my home, land surveying and the law of secured transactions.

Therefore we expect the Government of President-elect to continue with such political and economic measures taken.

You should also take into account the changes suggested in the reforms introduced in the 1984 Peruvian Civil Code, which may be agreed that the execution of the mortgage is out of court, which will improve the economy and allow for a more agile development by of economic agents.

Another issue good policy as a measure to revive the economy is the securitization of collateral, a topic that may in future be the subject of a CIDIP, but it have not yet been reported, ie, it would be to diffuse the asset securitization to improve the economy of the Peruvian state, as this would ensure that lower interest rates and in this not only bank interest. This issue is necessary to take into account in corporate finance, but need not consult any book of this area of ​​knowledge, but recent books, because this is a new issue, including the United States of America is studied only since the seventies.

We changed the criterion to be the assignment of contractual position in the Peruvian Civil Code of 1984 to allow for the same is not required to give consent given.

4. SOURCES OF INSPIRATION

All research has sources of inspiration, in this sense the sources of inspiration of this work are: the law of guarantee transactions, Registration Regulation, article I authored entitled Security Interest, other items, CIDIP VI, the book by the same author and present social reality.

5. SOURCES OF LAW

In any research work to keep in mind the law, doctrine, case law, enforceable, custom, general principles of law, social reality and the manifestation of will.

As the law is necessary to take into account the law of security interests and CIDIP VI, in terms of doctrine must be the work of Jorge Avendaño Valdez, Rolando Castelares, Fernando Cantuarias Salaverry, mine, among others.

In terms of jurisprudence must take into account that it has established before the passage of the law in question that the execution of the garment can be court when there is agreement in this regard.

It is also necessary to explore other sources of law.

6. Positivism

Positivism is the worship of the law without question or criticism, therefore, we can say that this work is not infected by it.

In this sense we can say that this does not worship the law of security interest.

In the doctrine are several types or classes of positivism, which stands within the positivism of Hans Kelsen (who was a lawyer well known and respected Austrian who wrote his book entitled The Pure Theory of Law) and the positivism of Austin.

However, the study of the positivism is beyond the scope of the present research.

It should be noted that positivism boomed in the nineteenth century, but at this time is largely discredited.

That is, there are many ideas on the drawing board on it, which deserves legal writing articles and books, as it is a mistake many lawyers (but not lawyers, and within the jurists) and especially within of them belonging to the Germanic Roman family and other families have legal positive law within which we can mention the common law legal family law and family social rights.

7. AREA OF KNOWLEDGE

When studying any legal issue is necessary to determine the area of ​​knowledge, in order to afford a global approach to study the issue, in this sense studying the area of ​​knowledge, it is certain not to obtain partial or little prospect series, which then developed the knowledge area of ​​guarantees.

When studying the security interest law are studied Registry, Attorney, Civil, Commercial, Corporate, cartular, Insurance and Reinsurance, Industrial Law, Business Law, Private International Law, Public International Law, Agricultural, Banking, Civil Litigation, Constitutional Litigation Constitutional Criminal, Criminal Procedural Law, International Trade, Securities, copyrights and industrial property.

When studying the new law security interest is necessary to study registration is necessary that the study of new-registered rules of contract furniture.

When studying the new law security interest is necessary to study because it is necessary to apply notarial law notary.

When studying the new law security interest is necessary to study because the garment is civil matter of civil law.

When studying the new law security interest is necessary to study some collateral commercial rights belong to the trade or business.

When studying the law of security interest is necessary to study corporate law because some belong to the corporate law guarantees.

When studying the law of security interest is necessary to study law or exchange cartular because some warranties are subject of this branch of law.

When studying the law of security interest is necessary to study the insurance and reinsurance law, because the latter body of law regulates certain guarantees and credit insurance and title insurance.

When studying the law of security interest is necessary to study industrial law because the law is unprecedented in the law of industries.

When studying the law of security interest is required for study of corporate law that they fall within the scope thereof.

When studying the law of security interest is necessary to study in private international law that is necessary to study the CIDIP VI and VII.

When studying the law of security interest is necessary to study public international law because it is necessary to study the OAS (which is a subject of international law) since the CIDIP VI has been approved by it.

On these last two areas of law will expand the comments in another subtitle of this work, as well as its importance deserves, and any work that aspires to be serious about the issue can not ignore.

When studying the law of security interest is necessary to study the land law because no precedent in the same garment such as agriculture.

When studying the law of security interest is necessary to study the banking law because the law regulated banks find some guarantees.

When studying the law of security interest is necessary to study civil procedural law because for the divestment of it is necessary to apply the Peruvian Civil Code of 1993.

When studying the law of security interest is necessary to study constitutional law because the law is unconstitutional.

When studying the law of security interest is necessary to study constitutional procedural law because this law is unconstitutional.

When studying the law of security interest is necessary to study criminal law because this branch of public law provides criminal penalties for those who constitute a guarantee on goods.

When studying the law of security interest is necessary to study the law of criminal procedure because in this branch of public law-making procedure is regulated in the case of crime referred to in the preceding paragraph.

When studying the law of security interest is necessary to study international trade law because in this branch of commercial law, private and business is necessary to use some guarantees.

When studying the law of security interest is necessary to study the securities law, because in this branch of commercial law, private business and provide guarantees and because in the same studying the securitization of assets.

When studying the law of security interest is necessary to study because of copyright on copyright can be guaranteed.

When studying the law of security interest is necessary to study industrial property because this area of ​​business law explores some guarantees.

Having developed the field of knowledge we can approach the subject with greater amplitude domain and therefore continue to develop the topic with a broader knowledge.

8. BACKGROUND Doctrinaire

In any research work is necessary to review the history of doctrine which will serve to get more reliable results.

The main background to this is my book, Guarantees and Warranties my article published in the Journal Contractual Legal Rules, the works of Fernando Cantuarias Salaverry, the work of Jorge Avendaño Valdez, Rolando Castellares work, among others.

9. LEGISLATIVE BACKGROUND

In any research work is necessary to review the legislative history of the Peruvian security interest law, which will serve to be more efficient results.

The main legislative history are CIDIP VI, the law of industries, the rules of registration, the Banking Act, the Code of Commerce of Peru, 1902, the Peruvian Civil Code 1984, the Peruvian Civil Code 1936, the Peruvian Civil Code 1852, tuo of the securities market law, the law of copyright, industrial property law, among others.

10. ADDITIONAL INFORMATION

It is necessary to consider other information such as social, and other rights as Roman law.

Among the other information we can present to the Roman law to which we now turn, and in any case needs a more comprehensive treatment which exceeds the present research.

11. ROMAN LAW

To some scholars of Roman law is dead or not the right place and for others it is a living law can be studied by studying the Roman-Germanic legal family and in some cases to the common law legal family.

In any research work is necessary to study the ancient Roman law, since it inspired in many respects to current law.

In this sense then review the civil law as regards the guarantees.

In Roman law there was no commercial law and corporate law, but mainly civil law existed and a few areas of law.

The same was studied some safeguards within which highlights the mortgage and the pledge but not studied them within the warranty issue, but studied them within the civil law.

That is, we can say that the guarantees were not investigated within the theme guarantees, but in the civil law.

The record that the guarantees are part of business law.

12. SCHOOL RECORDS

Records can be classified according to various criteria, such as private, public, legal and administrative information and according to that found in each institution, and the latter will be studied in this comment, remember that it is not apply to all records of Peruvian law.

Even some records are duplicated as in the case of the section of securities and broadcast programs of the public record of the stock market in a centralized manner, with the leading share register individually each corporation. The record that this comment only applies to some corporations.

There are several records such as records by the Conasev, Indecopi, registration areas, among others, however, this comment does not intend to cover all records but only to the records by the two latter.

That is, in this paper we will only refer to the records by the registration areas, but also apply in some cases to some records and other records Indecopi.

Records in charge of registration areas are classified as follows:

1) Records of property.

1.1) Registration of real property.

1.2) Record of personal property.

2) Records of people.

3) Records of contracts.

The Registry is a record contract guarantees.

The present study applies only to records of movable and intangible property and contract records.

13. GOODS MAY BE GRANTED ON WARRANTY

The law in question identifies the goods under warranty can be given in detail in Article 4, however, we can say that it is all real and some intangible.

In this sense, the scope of application of registration is extended, so we can say that was previously difficult to place a warranty on the record about some property.

14. REGISTER EVENTS

The law expressly identifies registrable acts in Article 32, which does not discuss this sub theme.

However, we confusing record enrollment with registration as a legal term used first instead of second.

However, it is to note that judgments can score over movable and intangible property, without requiring that the property is inmatriculado, as such registration advertising extends to other acts such as court decisions on property inmatriculados not. Therefore you must give the record more staff and greater number of public records, as the load increase registration number.

15. THE CURE DEFAULT notation

Registration is the genus and species are the registration and recording, so now we will refer only to the default entry corrected, which is not the only kind of annotation. However, this topic is beyond the field of study of this research, so we do not devote to developing this theme, but only the underlying theme as the default notation remedied.

This institution should be removed registry law in Article 36 of the Act in question because it is misleading to traders.

Especially since few people dominate the registry law, branch of law that becomes important only recently.

16. NEWS OF THE LAW

Every law contains new legislation, in this sense we can say that the developments of the law in question are mainly the following:

1) It creates a single record of contracts rather than all previous warranties on existing furniture.

2) It lists the property on which the guarantee can be formed.

3) It allows the parties agree comisorio pact.

4) no longer provides guarantees for every case but one kind of guarantee for all cases.

5) It is agreed allowing the extrajudicial execution of the guarantee.

6) It allows the dispossession of the warranty.

7) Create a new list of personal property.

17. DELETED RECORDS

The law in question eliminates some records, which are:

1) Registration Installment Sales Tax.

2) Registration of Industrial Garment.

3) Registration Pledge Fund.

4) Registration Pledge Pesquera.

5) Mining Pledge Registry.

6) Turn the Transport Registry (which never existed).

According to the fifth final disposition of the law in question.

18. PURPOSE OF THE LAW

All rules of positive law are certain purposes which the law in question discussed below.

The purposes of the law of secured transactions are:

1) Improve the market for holding more credit contracts (the market is where it meets the supply and demand).

2) Increase the trade.

3) That the largest amount of intangible personal property and ensure compliance with obligations in the Peruvian state.

19. MARKET GROWTH

The law is seeking to improve the market and increase the exchange of goods and services in the Peruvian state.

That is, the law in question seeks to market growth or economic growth.

For which it has made substantial changes in Peruvian positive law, and within that especially in reference to security interests, which would be important is also applicable to the mortgage, specifically refers to the extrajudicial execution of warranty, ie all the guarantees should be regulated by establishing that the extrajudicial execution is also applicable to the mortgage.

The reforms studied for the Peruvian Civil Code 1984 (Article 1111) published in the Official Journal El Peruano on 04/11/2006 studied the foreclosure can be extrajudicial, which will result to vary substantially regulatory framework for mortgage and that the caseload of the Judiciary is reduced.

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27. CONCLUSIONS















28. ADVICE













29. LEGISLATIVE PROPOSALS